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Law and the Racial Divide in the American Working Class, 1676–1964

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Law and the Racial Divide in the American Working Class, 1676–1964 POPE.TOPRINTER (DO NOT DELETE) 6/14/2016 4:58 PM Why is There No Socialism in the United States? Law and the Racial Divide in the American Working Class, 1676–1964 James Gray Pope* Introduction The gap between rich and poor in the United States yawns wider than in any other first-wave industrialized country. Why? One influential explanation points to the failure of American workers to build a class-wide movement for economic redistribution and social welfare protections. While European working classes were developing durable socialist movements during the decades around the turn of the twentieth century, the American working class fractured into craft unions that focused on collective bargaining for the immediate self-interest of their members. In his pathbreaking book, Law and the Shaping of the American Labor Movement, William Forbath suggested that law contributed crucially to this failure.1 American workers did launch struggles for broad objectives, but judges repeatedly and forcefully directed them toward more parochial concerns. For example, courts struck down hard-won reform legislation and selectively enjoined inclusive forms of labor organization like industry- wide (as opposed to craft) unions.2 My contribution to the Symposium explores the involvement of law and courts in constructing another related barrier to class-wide political and economic action. As Forbath recognized, “ethnic and racial cleavages will * Professor of Law and Sidney Reitman Scholar, Rutgers University School of Law. Many people generously shared their insights during this Article’s lengthy period of development. Peter Kellman provided essential advice on the overall approach. Jim Atleson, Elise Boddie, Bill Fletcher Jr., Eric Foner, Barry Friedman, Alan Hyde, John Leubsdorf, Ken Matheny, Richard Davies Parker, Richard H. Pildes, Lisa R. Pruitt, Dorothy E. Roberts, Ahmed White, Rick Valelly, and Rebecca Zietlow provided invaluable criticisms and suggestions on previous drafts. The Article also benefitted from critical comments at the second annual Alan Dawley Memorial Lecture at the College of New Jersey, the Cornell Law Faculty Colloquium, the Rutgers-Newark Law Faculty Colloquium, the West Virginia Law Faculty Colloquium, the Class Crits V Conference, the 2012 “How Class Works” Conference, the Lat Crit V Conference, the 2013 Law and Society Conference, and—of course—the Texas Law Review Symposium on the Constitution and Economic Inequality. Many thanks to the editors of the Texas Law Review for their splendid editing job on this unusually lengthy and source-intensive symposium contribution. 1. WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 3 (1991). 2. See id. at 37–98. POPE.TOPRINTER (DO NOT DELETE) 6/14/2016 4:58 PM 1556 Texas Law Review [Vol. 94:1555 surely remain central” to any full explanation for American working-class weakness.3 Herbert Hill, labor secretary of the National Association for the Advancement of Colored People (NAACP) during the contentious decades of the 1950s, 1960s, and 1970s, traced the root of this problem to “the historical development of working-class identity as racial identity.”4 Beginning in the early 1800s, when wage labor first emerged as a major component of the economy, white workers defined what it meant to be a “working man” by contrasting their own condition (citizenship) and perceived character traits (strength and independence) with those of women and workers of color (servitude, weakness, and dependence).5 The earliest workingmen’s associations commenced a tradition of excluding nonwhites that continued in the overwhelming majority of unions until the 1930s and, in unions organized on craft lines, for decades more.6 Although unions have officially reversed these policies, the old racialized conception of class identity persists. During the 2008 primary campaign, for example, Hillary Clinton claimed that she would be a stronger nominee than Barack Obama because of her advantage among “working, hard-working Americans, white Americans . .”7 As Clinton’s claim suggests, the “white working class” has become a swing, if not the swing, constituency in electoral politics. “Their loyalties shift the most from election to election and, in so doing,” observed political scientists Ruy Texeira and Joel Rogers, “determine the winners in American politics.”8 In recent years, some legal scholars have suggested that white-working-class support will be essential to any 3. Id. at 23. 4. Herbert Hill, The Problem of Race in American Labor History, 24 REVIEWS IN AM. HIST. 189, 189 (1996); see also Marion Crain, Colorblind Unionism, 49 UCLA L. REV. 1313, 1320–23 (2002) (recounting the role of race in constructing working-class identity). 5. JEANNE BOYDSTON, HOME AND WORK: HOUSEWORK, WAGES, AND THE IDEOLOGY OF LABOR IN THE EARLY REPUBLIC 153–55 (1990); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS 55–57 (1991) [hereinafter ROEDIGER, WAGES]. 6. See generally WILLIAM B. GOULD, BLACK WORKERS IN WHITE UNIONS (1977); HERBERT HILL, BLACK LABOR AND THE AMERICAN LEGAL SYSTEM (1977). 7. Kathy Kiely & Jill Lawrence, Clinton Makes Case for Wide Appeal, USA TODAY (May 7, 2008, 9:42 PM), http://usatoday30.usatoday.com/news/politics/election2008/2008-05-07 -clintoninterview_N.htm [http://perma.cc/G4AW-P4P5]. Cf. ROEDIGER, WAGES, supra note 5, at 19 (observing that “[i]n popular usage, the very term worker often presumes whiteness (and maleness), as in conservative Democrats’ calls for abandoning ‘special interests’ and returning the party to policies appealing to the ‘average worker’”). 8. RUY TEIXEIRA & JOEL ROGERS, AMERICA’S FORGOTTEN MAJORITY: WHY THE WHITE WORKING CLASS STILL MATTERS 15–16 (2000); see also Charlotte Garden & Nancy Leong, “So Closely Intertwined”: Labor and Racial Solidarity, 81 GEO. WASH. L. REV. 1135, 1208–09 (2013) (reporting that in the 2012 general election “working class whites in union households provided key boosts for President Obama in the swing states of Ohio and Wisconsin”). POPE.TOPRINTER (DO NOT DELETE) 6/14/2016 4:58 PM 2016] Why is There No Socialism in the United States? 1557 successful effort to reduce inequalities of race, gender, and class in the United States.9 My broad thesis is that law played a central role in dividing white workers from workers of color—before, during, and after the formation of the American working class. In particular, law reinforced racial divisions during certain crucial periods when political, economic, and military shocks disrupted elite control, creating possibilities for cross-racial laboring-class cooperation.10 I further suggest that the Supreme Court contributed importantly to this result, especially during and immediately following Reconstruction, when the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments created the greatest opportunity for cross-racial laboring class cooperation since the colonial era.11 Scholars from a variety of disciplines have debated the relative importance of economic, cultural, and psychological factors in shaping and sustaining racism.12 I do not propose law as an alternative explanation. I suggest only that law has served as a tool for dividing workers along racial lines, and that it has been highly effective at certain historical junctures. To omit the role of law is to invite distortion. There is a marked tendency in present-day academic and political discourse, for example, to depict white workers as uniquely prone to racism, and to blame them for the racial divide in the working class.13 Whatever the potency of racist attitudes and 9. See JOAN WILLIAMS, RESHAPING THE WORK-FAMILY DEBATE: WHY MEN AND CLASS MATTER 211 (2011); Brian Mikulak, Classism and Equal Opportunity: A Proposal for Affirmative Action in Education Based on Social Class, 33 HOWARD L.J. 114, 136 (1990) (characterizing class inequality as a “problem of birthright undermining merit,” and suggesting that “the unfettering of the working-class holds the promise of dramatic progress in our time”); Lisa R. Pruitt, The Geography of the Class Culture Wars, 34 SEATTLE U. L. REV. 767, 776–78 (2011) (calling particular attention to rural working people). 10. On these moments and their dynamics see MICHAEL GOLDFIELD, THE COLOR OF POLITICS: RACE AND THE MAINSPRINGS OF AMERICAN POLITICS 29–30 (1997). 11. The account presented here thus tends to provide support for the thesis that the Supreme Court can alter political and constitutional outcomes. For an in-depth discussion of that view, see Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 2010 SUP. CT. REV. 103. 12. For an illuminating and concise discussion of the theories, see id. at 9–16. See also MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES (2015) (summarizing and analyzing various theories about the development of racial consciousness and practices in the United States); AZIZ RANA, THE TWO FACES OF AMERICAN FREEDOM (2010) (suggesting that racial divisions were shaped by the culture and ideology of settlerism). 13. See Martha R. Mahoney, Class and Status in American Law: Race, Interest, and the Anti- Transformation Cases, 76 S. CAL. L. REV. 799, 809 (2003) (observing that “[f]or more privileged white Americans, racism often appears to be something that working class whites (particularly Southerners) do to African Americans and other people of color,” a perception that “tends to exonerate wealthier whites”); Lisa R. Pruitt, Who’s Afraid of White Class Migrants? On Denial, Discrediting and Disdain (and Toward a Richer Conception of Diversity), 31 COLUM. J. GENDER L. 196, 234–35 (2015) (noting that lower class whites “are now viewed as uncouth, illiberal and— worst of all—racist” and suggesting that elite whites may be “particularly vigilant” in policing the class boundary between themselves and poor whites “lest they be mistaken for their low-rent cousins”); Ahmed A. White, My Co-Worker My Enemy: Solidarity, Workplace Control, and the POPE.TOPRINTER (DO NOT DELETE) 6/14/2016 4:58 PM 1558 Texas Law Review [Vol.
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